Citation Nr: 1147492
Decision Date: 12/30/11 Archive Date: 01/09/12
DOCKET NO. 04-06 178 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for colon cancer, including as due to exposure to herbicides.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D.J. Drucker, Counsel
INTRODUCTION
The Veteran had active military service from January 1964 to August 1981 and from September 1981 to March 1988.
This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In December 2009 and July 2011, the Board remanded the Veteran's claim to the RO for further evidentiary development.
FINDING OF FACT
The evidence of record preponderates against a finding that colon cancer had its onset in service, within the first post service year, or is otherwise related to the Veteran's military service, including exposure to Agent Orange
CONCLUSION OF LAW
Colon cancer was not incurred in or aggravated by active military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (201).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
In December 2001, September 2004, April 2006, and December 2009 letters, the Agency of Original Jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The AOJ notified the Veteran of information and evidence necessary to substantiate his claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the April 2006 and December 2009 letters, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records have been associated with the claims file, to the extent available. Some of the Veteran's service treatment records are unavailable. The RO's additional attempt to obtain a separation examination and any additional service treatment records in 2010 was unsuccessful. A February 2011 RO file memorandum details VA's efforts to obtain the Veteran's 1988 retirement physical record and concludes that it was unavailable. The Board agrees. The Veteran reportedly does not have any such service treatment records in his possession. He submitted statements to support his claim. The Board recognizes that there is a heightened obligation to assist the Veteran in the development of his claim, a heightened obligation to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases. Russo v. Brown, 9 Vet. App. 46 (1996).4
All reasonably identified and available VA and non-VA medical records have been secured.
The Veteran was also afforded a VA examination in May 2010 in conjunction with his claim and the examination report is of record.
As noted above, in July 2011, the Board remanded the Veteran's case to the RO for further development that included obtaining an Addendum from the May 2010 VA examiner. There has been substantial compliance with this remand, as an August 2011 Addendum was obtained from the recent VA examiner
The Board finds the duties to notify and assist have been met.
II. Factual Background and Legal Analysis
The Board notes that it has reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
The Veteran asserts that he has colon cancer due to military service. In written statements in support of his claim, he contends that he was exposed to Agent Orange that caused or contributed to his post-service diagnosis of colon cancer. In a February 2002 signed statement, he said that he served in Vietnam from 1966 to 1969 aboard the USS BENJAMIN STODDERT and USS SCHOFIELD, and was exposed to Agent Orange on several occasions during shore bombardments when his ship was sprayed by American aircraft. Thus, he contends that service connection is warranted for colon cancer. In the instant case, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran's colon cancer was incurred in or otherwise the result of his active military service, including exposure to herbicides.
Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. In addition, the law provides that, where a veteran served ninety days or more of active military service, and a malignant tumor become manifest to a compensable degree within one year from the date of termination of such active service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b).
"[I]n order to establish service connection or service-connected aggravation for a present disability the veteran must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir 2004).
A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002).
However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as shortness of breath or loss of sense of smell, the Veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).
In this case, the Veteran contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and surgical treatment for, colon cancer.
Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307.
If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases include chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).
Effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) , in part, to add Parkinson's disease and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53202-16 (Aug. 31, 2010).
Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, including colon cancer, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. It was indicated that the National Academy of Sciences, after reviewing pertinent studies, concluded that there was inadequate or insufficient evidence to determine whether an association between herbicide exposure and colorectal cancer exists. See Notice, 75 Fed. Reg. 32,540-32,548 (2010).
Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation.
In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997).
The first determination to be clarified is whether the Veteran was exposed to Agent Orange. The above-described presumptions apply only to Veterans who actually served on the land mass of the Republic of Vietnam. The Veteran's service personnel records show that he received a Meritorious Unit Commendation by virtue of serving aboard the USS BENJAMIN STODDERT (DDG-22) while participating in combat operations in Southeast Asia from April 25, 1967 to September 2, 1967. His records reflect sea service, but no duty or visitation in Vietnam. Thus, the Veteran's receipt of a Meritorious Unit Commendation, a Combat Action Ribbon, Vietnam Service Medal, Vietnam Campaign Medal, and other medals, while certainly commendable in their own right, are not indicative of his actual service on the landmass of Vietnam or inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525).
In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2011). While it does not seem that spraying of Agent Orange during a combat operation is necessarily consistent with the circumstances (shore bombardment), resolving all doubt in the Veteran's favor, the Board finds that he was exposed to dioxins and the Veteran's statements establish an incident occurred in service.
However, colon cancer is not among the diseases or disorders that are positively associated with exposure to Agent Orange or is otherwise related thereto. As noted, in June 2010, the Secretary of VA determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for colorectal cancer. It was indicated that the National Academy of Sciences, after reviewing pertinent studies, concluded that the available evidence does not support an association between dioxins and colorectal cancer. See Notice, 75 Fed. Reg. At 32,543 (2010). Here, the objective medical evidence fails to demonstrate that the Veteran has a disease associated with exposure to Agent Orange or is otherwise related thereto and he has not established a nexus between his claimed colon cancer and military service. Accordingly, the Board will deny his claim for service connection for colon cancer.
Service treatment records are not referable to complaints or diagnosis of, or treatment for colon cancer. The records indicate that, in January 1966, the Veteran reported having gastric distress for the past several weeks, and that he was diagnosed with viral gastroenteritis in September 1980.
In February 1985, the Veteran was treated for viral syndrome and, in May 1986, he underwent a barium enema due to a family history of colon cancer. The results were age-consistent diverticulosis. Results of a colonoscopy performed in August 1986 were reported as normal. As noted above, a retirement physical examination report is not of record.
Post service, a November 2000 private medical record indicates that the Veteran was seen for colon cancer screening. He had no specific complaints and felt well. He had a history of a colonoscopy five years earlier that he believed was normal. His bowel habits were unchanged. Results of a December 2000 biopsy were positive for colorectal cancer. Private hospital records, dated from January to March 2001, indicate that the Veteran underwent segmental resection of the sigmoid colon to treat two lesions and had postoperative wound infection and fascial dehiscence. In October 2001, he was treated for an incisional hernia.
According to a May 2010 VA examination report, the examiner reviewed the Veteran's medical records. It was noted that the Veteran had a familial history of colon cancer. The examiner also noted his history of normal colonoscopy results in 1986 and positive biopsy results in 2000 for which he was surgically treated in 2001. The Veteran reported that he had symtoms of gastroenteritis in service that might have been cancer. He had hematochezia and abdominal pain prior to diagnosis of colon cancer in 2000. The Veteran also reported having diverticulitis of the right eye since service.
Upon clinical evaluation, diagnoses included colorectal cancer, after service, with a familial predisposition, that was "not caused by or related to service". The VA examiner noted that the Veteran had an acute episode of gastritis and acute gastroenteritis/viral syndrome twice during service, consistent with natural exposure and that did not denote a chronic condition. According to the VA examiner, the Veteran's "colon cancer occurred many years after service and is not caused by or related to acute gastroenteritis."
In the August 2010 Addendum, the recent VA examiner said that she "carefully reviewed" the Veteran's statements as well as the Institute of Medicine documents. She noted that there are "multiple risk factors for colon cancer, such as genetic predisposition, [inflammatory bowel disease (IBD)], ethnicity, age, gender, smoking, alcohol use, and obesity." According to the VA examiner "the most prominent [risk factors] are genetics, IBD, age and gender." The VA examiner explained that "predominance of medical evidence and expertise does not support colon cancer due to herbicide in this setting". Thus, the VA examiner said that the Veteran's colon cancer was less likely than not caused by or related to herbicide exposure or service.
While the Veteran is competent to testify as to an incident of service, he has not claimed (and the record does not show) pertinent symtoms in service or for many years after his military service. The Veteran contends that colon cancer is related to his claimed herbicide exposure in service. However, he is not shown to have the expertise to determine the etiology of colon cancer. The Board does not find the Veteran's contention, i.e., that colon cancer is related to claimed herbicide exposure in service, to be competent evidence.
The most probative evidence of record indicates that the Veteran's colon cancer is not linked to his military service.
Since the 2010 VA clinician's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the appellant's claim. The Board emphasizes that the VA examiner provided a valid medical analysis to the significant facts of this case in reaching his conclusion. In other words, the VA clinician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the Court has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see also Wray v. Brown, 7 Vet. App. 488, 493 (1995).
There is no medical opinion of record that contradicts the VA examiner's opinion. The VA examiner's opinion outweighs the Veteran's lay assertions.
A layperson is generally not deemed competent to opine on a matter that requires medical knowledge, such as the question of whether a current disability has been incurred in active service or caused or aggravated by another disability. While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. at 465. And although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as stomach pain or bowel urgency, he is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. at 456.
The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence of record is against the Veteran's claim for service connection for colon cancer, including as due to exposure to herbicides, and his claim must be denied.
ORDER
Service connection for colon cancer, including as due to exposure to herbicides, is denied.
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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs